senate Bill S1194
(R, C, IP) 2nd Senate District
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
Establishes the class E felony of vehicular assault in the third degree; redefines the requirements for a violation of vehicular assault in the second degree; expands the offenses of vehicular assault and vehicular manslaughter; and establishes the class D felony of vehicular manslaughter in the third degree.
TITLE OF BILL:
An act to amend the penal law, in relation to vehicular assault and
To establish new criminal sanctions and enhance existing criminal
sanctions in order to adequately deter and punish motorists who injure
or kill pedestrians or other drivers as a result of dangerous and
SUMMARY OF PROVISIONS:
Section 1 of the bill would amend the Penal Law by adding new §120.03-a,
establishing the crime of Vehicular Assault in the Third Degree, a class
E felony. Vehicular Assault in the Third Degree would be committed when
a driver seriously injures another and the driver (a) knows that his or
her license was suspended or revoked; or (b) the driver was operating
his or her vehicle in violation of Title VII ("rules of the road") of
the Vehicle & Traffic Law ("VTL") thereby causing the injury and had two
or more prior VTL violations in the last 18 months; or (c) is impaired
by his or her use of alcohol in violation of VTL §1192(1). An
affirmative defense that the serious physical injury was caused in whole
or substantial part by some factor other than the driver's impairment or
the manner in which the driver was operating the vehicle would be
Section 2 would amend Penal Law §120.03 to redefine the crime of
Vehicular Assault in the Second Degree. The level of the crime would be
raised from a class E to a class D felony. Changes also would include
eliminating the element of criminal negligence from the crime of
Vehicular Assault in the Second Degree when a driver is intoxicated or
his or her ability is impaired by alcohol and drugs and he, or she,
while operating a vehicle, motor vehicle, vessel, snowmobile or all
terrain vehicle, causes serious physical injury to another person.
Section 2 also would provide an affirmative defense where such serious
physical injury was primarily caused by some factor other than either
the driver's intoxication or impairment by alcohol and drugs or the
manner in which he or she operated the vehicle while so intoxicated or
impaired. The crime would also include commission of the crime of
Vehicular Assault in the Third Degree with Criminal Negligence.
Section 3 would amend Penal Law §120.04 by increasing the penally for
the crime of Vehicular Assault in the First Degree from a class D felony
to a class C felony, and redefining the crime so as to punish offenders
who (a) with intent to evade a police officer after having received a
lawful signal to bring the vehicle to a stop, operate a vehicle in
violation of the VTL's "rules of the road" and causes serious physical
injury; (b) operate a vehicle with a blood alcohol content of or (c)
commit the crime of Vehicular Assault in the Second or Third Degrees and
have a prior Vehicular Assault, Vehicular Manslaughter or Criminally
Negligent Homicide involving a vehicle conviction. This section also
includes an affirmative defense where such serious physical injury was
primarily caused by some factor other than the driver's intoxication or
the manner in which the driver operated the vehicle.
Section 4 would amend the Penal Law by adding new §125.11, establishing
the crime of Vehicular Manslaughter in the Third Degree, a class D
felony. Like Vehicular Assault in the Third Degree, Vehicular
Manslaughter in the Third Degree would be committed when a driver causes
the death of another and the driver (a) knows that his or her license
was suspended or revoked; or (b) the driver was operating his or her
vehicle in violation of the VTL's "rules of the road," thereby causing
the death and had two or more prior VTL violations in the last 18
months; or (c) is impaired by his or her use of alcohol in violation of
VTL §1192(1). The section also establishes the affirmative defense that
the serious physical injury was caused in whole or substantial part by
some factor other than the driver's impairment or the manner in which
the driver was operating the vehicle.
Section 5 would amend Penal Law § 125.12 to redefine the crime of
Vehicular Manslaughter in the second Degree. The level of the crime
would be raised from a class D to a class C felony. Changes also include
adding subdivision 4 regarding suspended licenses. Subdivision 5 adds
any violation of Title VII of the Vehicle & Traffic Law other than
subdivisions two, three or four of §1192 and also if the driver has been
previously convicted of two or more violations of Title VII of the
Vehicle & Traffic Law on at least two separate dates within the
immediately preceding eighteen months.
Section 6 of the bill would provide that the bill would take effect
An alarming number of pedestrians and others are seriously hurt or
killed each year by dangerous drivers operating their vehicles in
violation of the VTL's "rules of the road." Many of these dangerous
drivers are operating a vehicle despite prior convictions that resulted
in the suspension or revocation of their license. While such drivers are
sometimes held criminally accountable if there is compelling proof of
gross negligence or recklessness, all too often under current law such
dangerous behavior and deadly results can only be charged as a simple
VEHICULAR ASSAULT AND VEHICULAR MANSLAUGHTER REFORMS
Current law fails to adequately address the significant problem of
drivers who flagrantly violate the VTL's "rules of the road" by
speeding, refusing to obey traffic signals, or by committing other
"moving" violations, even when such driving results in the tragedy of a
pedestrian injury or death. Prosecutors are unable to charge drivers who
seriously injure or kill innocent bystanders under the existing
Vehicular Assault and Vehicular Manslaughter crimes, even when the
serious injury or death was the direct result of the driver's VTL
violation, absent proof of gross negligence. In addition, Prosecutors
must have proof of such criminal negligence in order to charge drivers
who are not licensed to operate a vehicle (often because their licenses
have been revoked or suspended as a result of past misdeeds) with the
crimes of Vehicular Assault and Vehicular Manslaughter. This unfortunate
reality offends the public conscience and invalidates the underlying
objective of licensing drivers, and should be addressed.
Recognizing, however, that a driver's violation of the VTL may not, in
all cases, be a direct cause of another person's death or injury, the
bill provides an affirmative defense where such serious physical injury
or death was primarily caused by some factor other than the defendant's
VEHICULAR ASSAULT AND VEHICULAR MANSLAUGHTER REFORMS - INTOXICATION
In 1983, the Legislature created the felony crimes of Vehicular Assault
and Vehicular Manslaughter to provide harsher penalties for intoxicated
drivers. These statutes, however, have not achieved that purpose because
prosecutors are still required to prove that the driver acted with
criminal negligence - a difficult standard to prove since courts have
ruled that driving while intoxicated, by itself, does not constitute
criminal negligence. The unfortunate result is that drunk or impaired
drivers who cause another person's death or serious physical injury
cannot be charged with vehicular assault or manslaughter unless they
have committed additional traffic infractions like speeding or running a
This deficiency in existing law is best illustrated by example. In
Suffolk County, an intoxicated driver crashed into the vehicle of an
innocent 31 year-old driver who died as a result of his injuries.
Despite the tragic results of this heinous crime, the drunk driver could
not be charged with vehicular manslaughter since he did not commit a
traffic infraction other than drunk driving. Incredibly, he received
only a conditional discharge and a fine. Also in Suffolk County, a drunk
driver, who struck and killed an unsuspecting teenage girl as she stood
near the side of a road, shamefully could only be charged with a
misdemeanor due to the onerous criminal negligent requirement. Current
law intolerably enables drunk drivers to escape punishment for victim
injuries and deaths. By removing the element of criminal negligence from
the crime of Vehicular Assault in the Second Degree and Vehicular
Manslaughter in the Second Degree when there is proof of intoxication,
the bill provides law enforcement with appropriate tools to effectively
prosecute and punish drunk drivers.
Recognizing, however, that a driver's ingestion of alcohol or drugs may
not in all cases be a direct cause of another person's death or injury,
the bill provides an affirmative defense where such serious physical
injury or death was primarily caused by some factor other than the
defendant's intoxication or impairment. For example, an intoxicated or
impaired driver lawfully parked at the side of the road "sleeping off"
the effects of his or her intoxication or impairment conceivably could
be struck by another vehicle. In that instance, if the driver who
"primarily caused" that accident suffers serious physical injury or
death, the intoxicated or impaired individual would be able to assert
the affirmative defense and avoid liability for the other driver's
injuries or death.
VEHICULAR MANSLAUGHTER REFORMS - EVASION OF A POLICE OFFICER
In addition to working diligently to reduce the number of drunk-driving
tragedies, New York State strives to keep its highways and other,
thoroughfares free from other unsafe drivers as well. Often, serious
injuries and fatalities have occurred due to drivers who display an
outrageous disregard for the well-being of others by traveling in excess
of the speed limit and refusing to comply with lawful police orders.
A tragedy in Queens perhaps best illustrates the importance of creating
new crimes and enhancing penalties for these motorists who seriously
injure or kill. A man led police on a high speed and deadly chase
through the streets of a Queens neighborhood. In his wake, he left two
elderly women dead and a 63-year-old man in critical condition.
Regrettably, under current law this driver can only be charged with a
class C felony. Under the bill, a person who leads the police on a
high-speed chase that results in the death of another will be charged
with Vehicular Manslaughter in the First Degree, a class B felony,
thereby exposing such an offender to 25 years in state prison.
The following list of similarly tragic crimes further underscores the
need for legislation that adequately addresses the cowardly and deadly
acts of those who refuse to adhere to the rules of the road and fail to
heed the instructions of law enforcement personnel.
* After leading police on a 110 mile per-hour chase through the streets
of a small town in upstate New York, a motorist lost control of his
vehicle and plowed into a restaurant and delivery truck killing two
* In November of 1996, a motorist, after refusing a State Trooper's
instruction to stop his vehicle, led the State Police on a 95 mile per
hour chase which resulted in a crash that left a 13-year-old girl dead.
* In 2001, a State Trooper stopped a vehicle for a traffic infraction.
As the State Trooper approached the vehicle on foot, the driver sped off
and struck a tree, killing his 21- and 22-year-old passengers.
The bill also makes conforming changes to the crime of Vehicular Assault
in the First Degree. Under the bill, those who violate the rules of the
road while evading pursuing police officers and cause serious physical
injury will be subject to swift prosecution for a class C felony.
PRIOR LEGISLATIVE HISTORY:
2008: Passed Senate/Assembly Codes Cmte.
2010: S.4168 Reported out of Codes; Advanced to Third Reading
2012: S.1835 Passed Senate
It is not anticipated that this legislation will have any significant
This act shall take effect immediately.
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